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2001 DIGILAW 652 (CAL)

Naba Kumar Kar v. Manick Chandra Nag

2001-10-09

Joytosh Banerjee

body2001
JUDGMENT Joytosh Banerjee, J. This second appeal is directed against the judgment and decree of Civil Judge (Sr. Division), Bolpur in the District of Birbhum in T.A. No. 48/96, wherein he dismissed the appeal and affirmed the judgment and decree passed by the learned trial court whereby the said court decreed the T.S. No. 93/94 and passed a decree for recovery of khash possession of the suit premises by evicting the tenant therefrom. 2. In the present appeal, the following question has been formulated as the only substantial question of law and it is as follows :- Whether the courts below erred in law, by their failure to come to a finding that only one of the plaintiffs, namely, Manick Chandra Nag is the landlord of the defendant/appellant and therefore the notice to quit given by all the plaintiffs is bad in law? 3. As suggested from the substantial question thus formulated, the only controversy, which is required to be decided here is whether the defendant was a tenant in respect of the suit premises only under one of the plaintiffs, namely, Manick Chandra Nag or he was a tenant under all the plaintiffs. It transpires from the judgments of the courts below that both the courts below found that the notice served here was not bad as all the plaintiffs being co-owners were the landlords. But on going through the judgments I find that both the judgments suffer from misconception of law and non-consideration of material evidence on record. Firstly, I should point out how the learned trial court that is to say Munsif, 2nd Court, Bolpur dealt with the matter, In his judgment at one place (P-10 of Paper Book) he observed as follows :- "Undisputedly the defendant is a monthly tenant under the plaintiff No. 1, Manick Chandra Nag in respect of the suit premises at a rental of Rs. 150/- per month payable according to Bengali Calendar month." In the same Page, he has further observed after considering the rent receipts Ext. 1 to 1(e), and Ext. C to C(3) that the rent of the suit premises was collected by plaintiff No. 1, Manick Chandra Nag. 150/- per month payable according to Bengali Calendar month." In the same Page, he has further observed after considering the rent receipts Ext. 1 to 1(e), and Ext. C to C(3) that the rent of the suit premises was collected by plaintiff No. 1, Manick Chandra Nag. Thereafter at the beginning of P-11 (Paper Book), the learned Trial Court observed as follows :- "Regard being had to the materials on record it is crystal clear that the plaintiff No. 1, Manick Chandra Nag is the co-owner/landlord of the suit premises and the plaintiff No. 2, Sanat Kumar Nag and the plaintiff No. 3, Sanjib Kumar Nag are some of the co-owners of the suit land." Thereafter, he referred one decision of the Apex Court reported in AIR 1976 SC 2335 and noted in his judgment that the Apex Court in that case held that when the property belonged to several persons but the tenant was inducted by one of the co-owners, he alone was competent to file the suit for eviction against the tenant without impleading other co-owners as he alone came within the definition of the landlord. The learned trial court further mentioned that the Apex Court took the same view in some other reported cases. Surprisingly enough inspite of this, the learned trial court came to his conclusion by making this observation at P-12 (Paper Book)." “Admittedly, the defendant was inducted in the suit property by plaintiff No. 1, Manick Chandra Nag who is one of the co-owners of the suit land. But, relying upon the decisions referred above, I am of the view that if the notice to quit to terminate the tenancy of the defendant in the suit premises was sent by the plaintiff No. 1, Manick Chandra Nag alone that was sufficient and valid." In this way he not only created an impression that he could not follow the reported judgment noted in the judgment, he also misdirected himself by pointing out that the notice to quit was given by Manick Chandra Nag alone. Actually, the notice was given by all the 3 plaintiffs and the question here is whether if Manick Chandra Nag alone was the landlord other owners of the property could serve any notice to the tenant or not. Actually, the notice was given by all the 3 plaintiffs and the question here is whether if Manick Chandra Nag alone was the landlord other owners of the property could serve any notice to the tenant or not. So it transpires that the learned trial court practically failed to consider the question at issue properly, on consideration of the evidence on record and other relevant facts and circumstances. The learned First Appellate Court deal with this matter practically without any consideration. In P-4 of his judgment (Page-26 of Paper Book) he observed as follows :- "The defendant in para-16 of the Written Statement has specifically stated that he is the tenant in respect of the suit premises under the plaintiff/respondent No. 1, namely, Manick Chandra Nag. It is the argument of the learned Advocate appearing on behalf of the appellant that two other brothers of Manick Chandra Nag have been included in the notice and therefore the notice ought to have been considered as invalid notice. I do not accept this argument inasmuch as it has been stated in the plaint specifically that all the plaintiff/respondents are the owners of the suit premises and as such inclusion of the other co-owners of the suit, the actual landlord does not make the notice invalid." It is to be noted here that assertion made in the pleadings are not evidence. So, the learned first appellate court did not reach at his conclusion on the basis of any evidence. But on the basis of the pleadings of the parties or to speak it more correctly on the basis of the plaint without assigning ***** any reason why the assertion made in the written statement should not be believed in the same way. Secondly, I find that the learned appellate court below in coming to such a conclusion practically equated ownership and that of landlord. According to him, the owner is the landlord, which is patently an incorrect conclusion. To be a landlord one mayor may not an owner as the relationship of landlord and tenant depends upon the contract of tenancy and for that purpose a person may induct a tenant in respect of a property in which he may not be the owner. 4. To be a landlord one mayor may not an owner as the relationship of landlord and tenant depends upon the contract of tenancy and for that purpose a person may induct a tenant in respect of a property in which he may not be the owner. 4. In the case of Kulbanth Kaur vs. Gurdial Singh Mann (dead) by LRs & Ors., reported in AIR 2001 SC 1273 , the Apex Court has held that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed, but where it is found that the finding stands vitiated on wrong test and on the basis of assumption and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. This is, however, only in the event such act is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice." I have already noted here that both the courts below failed to consider the question at issue properly in accordance with law. While the learned trial court at one point of time came to a clear finding that one of the plaintiffs alone was the landlord, he in the other part of the judgment came to a different finding only drawing an erroneous conclusion from the reported decision of the Apex Court. The appellate court on the other hand disposed of the matter by making cryptic observation which indicated that in arriving at a particular conclusion he relied on the assertion made in the plaint and he found that since all the plaintiffs were the owners of the property, they were also the landlords. 5. Being faced with such situation I find that it is open to this court to consider the question afresh on the basis of the evidence. Admittedly, one of the plaintiff/respondent, Manick Chandra Nag used to collect the rent by granting rent receipt and this rent receipts referred to by the learned trial court go to show that rent was collected by Manik Chandra Nag only on his behalf as there was no indication that the rent was collected by the said Manick Chandra Nag also on behalf of other plaintiffs of the suit. The said Manick Chandra Nag was examined as P.W.2 and he in his evidence admitted that he did not file any paper to show that he collected the rent from the suit premises on behalf of all the plaintiffs. The defendant, Naba Kumar Kar in his evidence clearly stated that he was not a tenant under the plaintiffs. He was a tenant under Manick Chandra Nag who used to realise rent from him in respect of the suit property. He also denied a suggestion that Manick Chandra Nag collected rent on behalf of all the plaintiffs. There is no cross-examination from the side of the plaintiff on this point. So from the unchallenged oral testimony of the defendant which stands corroborated from the documents like rent receipts, it is established that Manick Chandra Nag alone was the landlord and for this he used to collect the rent by printing his name in the rent receipt. Therefore, the next question is whether the notice is bad as the same was issued by all the plaintiffs although there was no relationship of landlord and tenant between the defendant and two of the plaintiffs. Here the learned Advocate for the appellant/defendant has referred a very old decision of this court, which in my considered opinion will be very much relevant for deciding the ultimate question which has been formulated as the substantial question of law here. In the case of Parekh Brothers vs. Kartick Chandra Saha & Ors., reported in AIR 1968 Calcutta 532, a Division Bench of this court (judgment delivered by Hon'ble Justice A.K. Mukherjee as his Lordship then was). In a similar background, has observed. "The contract that has been pleaded is a contract in which the defendant is a party on one side and the three plaintiffs are the party on the other side. On the other hand, the contract that seems to have been proved in evidence is a contract in which one of the parties was the appellant and the other party was Kartick Chandra Saha. This contract is not the same contract as the alleged contract between the appellant and the three plaintiffs. Therefore, one cannot say that the contract that has been proved is the same as the contract that has been alleged. This contract is not the same contract as the alleged contract between the appellant and the three plaintiffs. Therefore, one cannot say that the contract that has been proved is the same as the contract that has been alleged. Therefore, Kartick cannot succeed in his plea that the names of the other two brothers which appear as co-plaintiffs in the plaint or in the notice should be treated as surplusage." Similarly, in the instant case, the contract that was alleged by the plaintiffs was that all the three were the landlords of the defendants was not proved and it has been established here that amongst the plaintiffs only Manick Chandra Nag alone had relationship of landlord and tenant between him and the defendant. Therefore, I am constrained to hold that the notice which was issued by all the plaintiffs are bad in law and suit is also not maintainable. 6. The appeal is allowed. Judgment and decree passed by the courts below are set aside and the suit is dismissed. But having regard to the circumstances, I make no order as to costs. Appeal allowed.